City of Johannesburg and Others v Mazibuko and Others (489/08)  ZASCA 20 (25 March 2009) In this case, the Supreme Court of South Africa considered whether a local authority had a duty under the South African Constitution to provide free water to Phiri residents who could not afford to pay for such water themselves. The Court confirmed that all people in South Africa have the right to access sufficient water pursuant to s 27 of the South African Bill of Rights. It was held that 'sufficient water' is the quantity of water required for dignified human existence. On the facts of this case, Phiri residents were found to be entitled to 42 litres of water per person per day. Water metres which restricted Phiri residents' access to water were held to be unlawful.
Until 2004, the residents of the Phiri township in Soweto had access to an unlimited supply of water which was not metered and for which they were charged on the basis of a deemed consumption of 20kl per household per month. In 2004, the deemed consumption was discontinued and payment metres were installed which dispensed 6kl of water per household per month for free. Additional water had to be pre-paid for.
The respondents argued that s 27 of the South African Bill of Rights gave them the right to access 50 litres of water per person per day. That quantity of water, they contended, had to be provided free to each resident in Phiri who could not afford to pay for such water themselves. In response, the City of Johannesburg ('the City') maintained that the Constitution only required them to provide Phiri residents with 25 litres of free water per person per day.
Right to sufficient water
The Court confirmed that all people in South Africa have the right to access sufficient water pursuant to s 27 of the South African Bill of Rights. They held that a purposive approach should guide the interpretation of this right. The Court emphasised that the principles of dignity, freedom and equality lay at the heart of the South African constitutional order. It therefore followed that the right to 'sufficient' water referred to the quantity of water required for dignified human existence.
It was held that the amount of water required for dignified human existence will depend on the circumstances of the individual concerned. Therefore, what constitutes a 'sufficient' level of water may differ from case to case. In this case, the evidence before the Court indicated that, on average, Phiri residents required 42 litres of water per person per day. Therefore, the City's policy of providing only 25 litres of free water per person per day fell below that of a sufficient level.
Progressive realisation of rights
It was acknowledged by the Court that the constitutional right to water did not provide for the immediate fulfilment of that right. Rather, the Constitution only required the City to act reasonably and to progressively fulfil its obligation to ensure that everyone had access to sufficient water. In this case, the City was obliged to supply free water to residents who could not pay for such water if it was reasonable to expect them to do so. Factors pertaining to reasonableness included the availability of resources and the cost implications of providing residents with 42 litres of free water each day. It was decided that it was neither possible nor appropriate for the Court to revise the City's free water policy. Therefore, the Court instructed the City to formulate a revised water policy in light of the finding that it was constitutionally obliged to grant each Phiri resident who could not afford to pay for water with access to 42 litres of free water per day, in so far as this could reasonably be achieved. Pending the reformulation of the water policy, indigent Phiri residents were to be provided with 42 litres of free water each day.
Prepaid water metres
The Court emphasised that procedures for restricting access to water must be fair and equitable and must provide residents with reasonable notice that their water services were going to be limited or discontinued. Therefore payment metres must not be used to deny a person access to basic water services where that person is able to prove that he or she is unable to pay for water. For these reasons, the payment metres which restricted Phiri residents' access to free water were unlawful. However, the finding of unlawfulness should be approached with a note of caution. Having concluded that the water metres were unlawful, the Court went on to decide that, in light of the significant capital that had already been invested in this infrastructure, it was not appropriate to order the water metres to be removed. The Court therefore ordered that the finding of unlawfulness should be suspended for a period of two years to enable the City to take steps to legalise the use of prepaid water metres.
Relevance to the Victorian Charter
Unlike the South African Constitution, the Victorian Charter does not expressly provide for socio-economic rights. Therefore the right to water is not provided for in the Charter. However, access to water is an issue that may be relevant to some of the rights that are prescribed by the Charter, particularly the right to life. As South African case law establishes, access to sufficient water represents an important aspect of the right to live a dignified human existence. In Victoria, the relationship between access to water and the right to life is one that may become increasingly significant in light of issues such as water shortages and climate change.
The decision is available at http://www.saflii.org/za/cases/ZASCA/2009/20.html.
Magdalena McGuire is a volunteer lawyer with the Human Rights Law Resource Centre